When a relationship or marriage breaks down, it often brings about a range of challenges, including the need for financial support. In Australia, spousal maintenance is a legal provision aimed at ensuring that one party receives adequate financial assistance from their former partner after separation or divorce if they are unable to adequately support themselves.
In this article, we will provide information about spousal maintenance in Australia, including how it is decided whether spousal maintenance is required and how disputes surrounding spousal maintenance can be resolved.
What is spousal maintenance?
Spousal maintenance, also known as spousal support, refers to financial payments made from one spouse to another following a separation or divorce. Spousal maintenance payments are not automatic or guaranteed, however, they are usually awarded when one spouse is unlikely to be able to support themselves following a separation.
Spousal maintenance is determined on a case-by-case basis, taking into account several factors such as the financial needs and capacity of both parties to earn an income. The payment amount will depend on unique factors and is likely to be an amount that allows the recipient to maintain a reasonable standard of living.
You may have also heard of spousal support as being referred to as alimony. While similar in concept, alimony is a term used in the American legal system and not in the Australian family law system.
Which factors are considered when determining spousal maintenance?
Australian courts weigh various factors when deciding spousal maintenance arrangements, including:● Income, property, assets, and earning capacity of both spouses
- Age and health concerns limiting earning ability
- Whether children are involved requiring care from one spouse
- Standard of living during the relationship
- Direct and indirect financial contributions during marriage, including homemaking
- Duration of the marriage or relationship
- Sacrifices made, such as putting a career on hold to raise children
The court will assess the financial needs of the party seeking maintenance, including living expenses, mortgage or rent payments, and other necessary costs. It will also evaluate the paying party’s ability to meet these needs while still supporting themselves adequately.
How long does spousal maintenance typically last?
There’s no exact timeframe of how long a spousal maintenance order will last – it is dependent on your unique circumstances; however, the Court will usually specify a period of time appropriate for your situation.
Factors like the length of the marriage and if there are dependent children of the former couple will likely impact the duration of the spousal maintenance support period.
What financial needs and expenses does spousal maintenance cover?
Spousal maintenance aims to address the financial needs of the party seeking support. It typically covers living expenses, including costs associated with housing, utilities, food, and clothing.
Other necessary expenses such as healthcare and medical costs may also be included. The court will consider the specific circumstances of each case and assess the reasonable financial requirements of the receiving party to ensure they can maintain a reasonable standard of living.
Changing, ending, or enforcing spousal maintenance
Spousal maintenance orders can be varied if financial circumstances significantly change for either party. The paying spouse cannot arbitrarily lower or cease payments without applying to Court.
If the receiving spouse dies or remarries, the spousal maintenance will no longer be required. If the spouse who is paying the maintenance passes away, the spousal maintenance requirement will cease too.
If the paying spouse defaults on court-ordered payments, they are technically in breach of court orders which can have serious consequences. If you’re the receiving spouse and your former spouse does not pay their spousal maintenance payment, we recommend seeking legal advice before seeking enforcement.
What steps can individuals take to resolve spousal maintenance disputes outside of court?
In order to resolve spousal maintenance disputes outside of court, individuals have several options.
They can engage in negotiation and communication with their former partner to reach a mutually agreeable solution regarding the financial support. Mediation, where a neutral third party facilitates discussions, can also be a useful tool for resolving disputes. This process allows both parties to express their concerns and interests while working towards a fair resolution.
Seeking legal advice from family law professionals can provide guidance and help individuals navigate the negotiation or mediation process effectively.
Can spousal maintenance be awarded retroactively, or does it only apply to future support?
Spousal maintenance can be awarded retroactively in Australia. If a party seeking maintenance was not receiving adequate financial support during a specific period after the separation, they may be entitled to claim retroactive payments for that period.
The court will consider the circumstances and may determine the retroactive amount based on the financial needs and capacity of both parties during the relevant period. However, it’s important to note that each case is unique, and retroactive awards are subject to the court’s discretion based on the facts presented.
Seek professional legal advice
If you find yourself in a situation where spousal maintenance may be relevant, it is essential to seek legal advice from a qualified professional who can guide you through the procedure and help you understand your rights and commitments. Remember, every case is unique, and it’s crucial to approach it with patience and an open mind.
While rarely a smooth process, spousal maintenance can provide much-needed financial equability during a challenging divorce or separation. Understanding the ins and outs helps both parties uphold their rights and responsibilities. With proper legal support, Australian spousal maintenance laws aim to generate reasonable, balanced post-marital financial solutions.
Separation and divorce can be emotionally challenging, and understanding spousal maintenance can provide a sense of security and assist in the transition to a new chapter in life. With our support you can navigate the complexities of your financial matters and we will assist you with paving the way for a better future.
If you’ve separated recently or you are deep in the divorce process and you are concerned about financial stability and spousal support, contact us today. Our experienced family law and mediation team is here to provide clarity, help you gain confidence, resolve any dispute and allow you to move forward with your life.
You can discuss your situation with our family law team during a no obligation consultation.